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Negligence - Breach of Duty (Delict 7/8 - Coggle Diagram
Negligence - Breach of Duty (Delict 7/8
Algorithm for negligence action
1 = duty of care owed to the pursuer.
2 = breach of duty
3 = breach must cause a loss.
what is the standard of care owed?
reasonable man test
"legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation."
Muir v Glasgow Corporation (1943) SC (HL) 3 Lord MacMillan
"the law does not expect the defender to go beyond the standards of the reasonable person. The defender is only obliged to take reasonable care: he is not expected to ensure that his acts or omissions never harm the pursuer." (
Thomson's Delictual Liability 124)
is it subjective or objective? (Muir, 10, Per Lord MacMillan)
its impersonal, it eliminates the personal equation + is independent of uniqueness of the individual person's who's conduct is being investigated.
the reasonable man is presumed to be free from over apprehension and over confidence, there is a sense that the standard of care of the reasonable man involves in its application of subjective element.
Standard of Care for Professional Negligence
the defenders conduct will be judged against the standard of care expected in their profession.
in context of claims of negligence, the courts will need to specify the relevant professional standards.
General Criteria for Establishing Breach of Duty
i. Voluntary act or omission by the defender
Waugh v James K Allen Ltd (1964) SC (HL) 102, at 105, Per Lord Reid
"the issue is not whether Gemmell was in fact unfit to drive when he left the glue works, it is whether, as a reasonable man, he ought to have realised that he was unfit. He had no reason to suspect thrombosis, even his doctor had never suspected it. but were his symptoms such that an ordinary layman would have taken then as a warning that it was hazardous to drive off immediately?"
ii. the harm must be the reasonable and probable consequence of the defender's conduct.
Muir v Glasgow Corporation (1943) SC (HL) 3, at 8 Per Lord Thankerton
"it has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man"
the harm to the pursuer must be reasonable and probable consequence of the defender's act or omission.
if the given harm is not a probable consequence of one's conduct, one is not at fault in relation to it.
Reasonable and Probable Consquences
Malcolm v Dickson (1951) SC 542, at 547 per the lord Justice Clerk Thomson
"a wrongdoer is not held responsible for all the results which flow from his negligent act, practical considerations dictate, and the law accepts that there comes a point in the sequence of events when liability can no longer be enforced."
at 566, per Lord Patrick
it would not occur to the ordinary reasonable man that a reasonable and probable consequence of his being careless in burning paint from a window-frame would be that some intervener would suffer a substantial injury through over-exertion, strain and excitement in carrying furniture from the house."
the range of probable consequences
the kind or type of injury must be a reasonable and probable consequence
Hughes v Lord Advocate (1963) SC (HL) 31
Lord Reid at 40 = "this accident was caused by a known source of danger, but caused in a way which could not have been foreseen."
Lord Pearce 48-49 = "there was thus an unexpected manifestation of the apprehended physical dangers. The resulting damage, though severe, was not greater than or different in kind from that which might have been produced had the lamp spilled and produced a more normal conflagration in the hole"
Consequence's - in light of the general state of Human Knowledge at the time
Roe v Minister of Health 1954 2 qb 66
Dr Graham sought to escape the danger of infection by disinfecting the ampoule. In escaping the known danger that he unfortunately ran into another danger.
he did not know there could be undetectable cracks, but it was not negligent for him not to know it at that time, we must not look at the 1947 accident with 1954 spectacles.
iii. the act or omission must constitute negligence.
Thomson 134
relevant factors
probability and seriousness of the injury
practicability of precautions and the cost of precautions
the utility of the defenders activities.
practice of the other persons in the same type of business or profession as the defender
the court balances the costs of preventing harm to the pursuer against the risk of injury to the pursuer
from that emerges the standard of the reasonable man in the position of the defender.
if the defenders conduct has in fact not reached the standard she has been negligent and therefore in breach of the duty of care owed to the pursuer.
Key Considerations in deliberating on Negligent Conduct
Probability of injury to pursuer
Bolton v Stone (1951) AC 850
Lord Reid = "even the most careful person cannot avoid creating some risks and accepting others. What a man must not do, and what I think a careful man tries not to do, is to create a risk which is substantial." 867
Lord Reid = "I think reasonable men do in fact take into account the degree of risk and do not act on a bare possibility as they would if the risk were more substantial" 865
seriousness of the injury to P
Paris v Stepney Borough Council (1951) AC 367
Lord Oaksey 384 "the servant only has one eye... is one of the circumstances which must be considered by the employer in determining what precautions if any shall be taken for the servants safety. The standard of care which the law demands is the care which an ordinarily prudent employer would take in all circumstances."
389 Lord McDermott "for Workman and employer alike such expressions as "risk", danger and safety would loose much of their everyday meaning if divorced from the results to life and limb."
value of the activity
Watt v Hertfordshire County Council (1954) 2 all ER 368
Practicality of taking precautions
cost of precautions
usual practice in the same business, trade or profession